Dead Kennedys

If the fate of the world rests on one elderly judge, we're in a bad place.

What is it about human nature that lets us be shocked at events
which are not
only predictable, but inevitable?

A few years ago, politics was thrown into turmoil at the death of
80-year-old Supreme Court Justice Antonin Scalia. What, is it
that unheard of for people of that age to abruptly die? Had
nobody given thought to that eventuality?

Now, politics is once again thrown into turmoil at the retirement of
81-year-old Supreme Court Justice Anthony Kennedy. Is it truly
shocking that the longtime colleague of the late Justice Scalia would
look at the calendar, realize that he's a year older than his dearly departed
colleague was, and decide he'd like to enjoy at least a few years of
the kind of taxpayer-funded lavish retirement of which the rest of us
can but dream?

Yet the Left is not only casting Kennedy's retirement as the end of
the world as we know it, they're pillorying him for retiring. What do they
expect of him, exactly? Living on forever?

Of course we know the answer these trolls are thinking of: Justice
Kennedy, like the even more superannuated Ruth Bader Ginsburg and
slightly-less-so Stephen Breyer, should
have retired ten years ago, allowing President Barack Hussein Obama and
a completely Democratic Congress to replace them with 30-year-old
card-carrying
Communists.

Instead, presumably President Trump will appoint a justice who
will... well, cast votes that would have been viewed as completely
ordinary and conventional back when President Trump was younger.
Is
that really such a disaster for America?

Politics Is What We Make It

In fact, it may well be, though not for the reasons given.
Let's consider the worst plausible result of the most conservative
possible replacement of Justice Kennedy: a ruling that strikes down Roe v. Wade which created an
(un)Constitutional right to abortion on bogus grounds a half-century
ago.

Will this suddenly throw abortionists and unwanted mothers into
prison? Of course not. Yes, Alabama may outlaw abortions;
New York and California certainly won't. Worst case, a woman who
wants an abortion might need to travel a few hundred miles to a
neighboring state to get one - which, as a free American, she has a
perfect Constitutional right to do. The Left can stop donating to
Planned Parenthood and start buying Uber gift
certificates for pregnant Alabamans, while themselves remaining in New
York City, Los Angeles, or a college town where everyone they'll meet
agrees with them.

Which, aside from the "original sin" of slavery, is how America used
to resolve these kinds of inherently irreconcilable differences: take
advantage of our continent-spanning country and put some distance
between divergent opinions. Those of our readers who remember the
original Roe v. Wade decision
will tell you that that was precisely the soft of messy federalist
solution towards which we were heading before the Supreme Court touched
off a low-grade civil war.

No, the reason the Left is so outraged at the loss of the last
significant person named Kennedy, is that it means they will stop
winning at the Supreme Court. It's not so much that their
victories preserve their own liberties to live life their way; it's
that creating new rights allows them to ram their political opinions
down the throats of everyone else, when voters reject attempts to pass
their agenda through the legislature in the proper way.

Justice Kennedy has been their primary tool to accomplish these
ends: Since his appointment, Kennedy has
been the most important justice precisely because he is unpredictable
and can side with either Left or Right.

He sided with the Left to create a right to homosexual "marriage";
he sided with the Right to uphold the Second Amendment right to keep
and bear arms.

He sided with the Left on many occasions to defend abortion; he
sided with the Right to defend free-speech rights in Citizens United.

Case after case found that the views of all the other justices were
largely known in advance, but as weeping Democrat leaders pointed out on hearing
the news, Justice Kennedy was "usually persuadable."

In a way that's good: justices are supposed to fairly listen to and
decide a case. They are not supposed to have judged it in
advance; that's where we get the very word prejudice, meaning to
"pre-judge" someone or something, and nobody wants that in a courtroom.

Yet a fundamental principle of the rule of law is that most
cases ought to be generally predictable based on reading the law and
comparing
it to
the facts.

It ought to be entirely unsurprising that a constitutional amendment
stating "the right of the people to
keep and bear arms, shall not be infringed." means, well, that
individual people have the right to
keep and bear arms.

It should be both shocking and horrifying for judges to find a right
to abortion or homosexual "marriage" hidden in a document which
discusses neither topic in any way and which was written by men who,
history
plainly teaches, unanimously would have found either suggestion ghastly.

In other words, reading the law should, nine times out of ten, tell
you what the decision will be. But with Justice Kennedy that
wasn't the case: as the unnamed Democrat panjandrum truthfully pointed
out, he was "usually
persuadable" of made-up Leftist arguments no matter how far-fetched
when compared to the written laws duly enacted by the people's elected
representatives over the past three centuries.

The problem is that our modern Left believes neither in our
Constitution nor in democracy itself. Donald Trump won a minority
of the electorate, yes, but he won a clear majority of electoral votes,
which is how our system works as written. The Republicans in
Congress each won their individual districts.

That ought to allow the Democrats to at least grudgingly accept
Donald Trump as their President, for now at least, but the Left
believes
that the Voice of the People should count only when it is saying what they want it to say and not
otherwise. Republicans have won at the polls and they have the
right to appoint and confirm their selection of judges just as Mr.
Obama and his Democrats did. That is how our
political system should work, and if the opposition respected the
system,
they'd simply be trying harder to win next time around instead of
trying to break
the system through violent and extralegal protests as demented reprobates like Rep. Maxine Waters openly
advocate.

Democracy is like a train; you get off once you have reached your
destination.

When the Democrats win an election, that's democracy at work.
When they lose an election, they take to the streets to prevent the
actual winners from accomplishing the platform they ran on, and that's democracy at work as they
see it.

Black-Robed Proxies

What has this to do with judges? In a sane world where the
system was working as designed, absolutely nothing. Chief Justice John Roberts explained the proper
job of a judge:

It's my job to call balls and strikes and not to pitch or bat.

That's not what our modern Court does, and hasn't throughout Justice
Kennedy's tenure: it pitches, bats, umpires, mows the outfield, and
from time to time rearranges the bases. For reasons unclear and
which our Founders could not have imagined, somehow our Congress has
willingly permitted the Court to take over its proper job of deciding
what our laws shall be instead of impeaching the activist judges.

And perhaps that's the most frightening potential outcome of Donald
Trump replacing Justice Kennedy with a classical conservative: A Court
which believes in its proper limits will be a Court which is so
unfamiliar to younger Americans to
be unrecognizable.

Consider our earlier example: If a new conservative justice joins
with the other conservative justices to strike down Roe v. Wade,
abortion will not be outlawed. It will simply be devolved to each
state to pass whatever laws they see fit just as the Constitution
provides. If that happens, state
politicians will, for once, have to stand up and be counted on a major
practical issue.

The same is true with homosexual "marriage," immigration
enforcement, and all manner of other things: The Constitution delegated
authority over those
areas to other branches and levels of government and not to the Court, and it's time for
those branches which are truly responsible to step up and take
responsibility.

Those who want open borders need to run on that as a platform, get
elected, and pass a law making it so. Those who want to make
illegal to restrict what people with which sexual organs go into whose
bathrooms need to pass a law to that effect. And on and on down
the whole panoply of leftist destruction of our culture and history, so
much of which has been ordained from on high by courts without ever
being voted on by the actual representatives of the people who sit in
the legislature.

Given the vast and unaccountable power that's been foolishly granted
to our Supreme Court, it's no wonder that the Left is panicking at the
prospect of losing one of their number: it's ever so much easier to
persuade one old guy than a hundred million voters, as Hillary Clinton
was notoriously unable to do.

Maybe now they'll have to once again learn how to try - or, more
likely, discover that it can't be done with the policies they truly
believe in. In which case, what exactly will happen when the
pendulum swings back their way, as it always does, and they come
roaring back into power thirsty for vengeance?

"...viewed as completely ordinary and conventional back when President Trump was younger."

That should be "when President Obama was younger"?

July 1, 2018 10:59 PM

Brian Richard Allen said:

.... Kennedy has been the most important justice precisely because he is unpredictable and can side with either the rule-by-fiat, George Three Gang -- or with the united States constitution.

.... He bent Left to fantasize a "right" to destroy the 1.7-million-years-old civilizational-cement, in more recent times called "marriage" and then turned back to our constitution to deign to find in it's Second Amendment its barrier to government infringement upon our God-given right to keep and bear arms.

.... Kennedy on innumerable occasions criminally sided with the fascist Left to defend the Shoah-reminiscent slaughter of more than fifty million unborn babies but as-capriciously flicked back to our constitution to roll back government restraint of free speech, in "Citizens United."

.... In case after case (but one, Partiegenosse Roberts) we knew the views of all the other justices in advance, except: as weeping Democrat leaders pointed out on hearing of his retirement; Tony Kennedy was "usually persuadable" ....

Truth is, though, that Kennedy is now and always was even more predictable than is the rule-by-fiat fascist Left claque and are the originalists.

He's a narcissist -- and always voted for the biggest "KENNEDY" headline.

July 1, 2018 11:08 PM

soljerblue said:

"A Court which believes in its proper limits will be a Court which is so unfamiliar to younger Americans to be unrecognizable."

Actually, the SCOTUS hasn't been truly independent since FDR scared the Hughes court silly with his court-packing scheme in the mid-1930s. That plot ultimately failed, but the court got the message loud and clear. New Deal legislation had a much easier time of it with the justices after that dust-up.

True. America will never recover from the depredations and degradations perpetrated by the traitor, Roosevelt and nor from his criminal expansions of the fascist power of the federal government.

Although, unlike the Other Great One: President Reagan; President Trump has never - before Clarke Kenting into the antiroosevelt rig - had to first fall out of like with the loathsome and fearsome Roosevelt.

Which reinforces my optimism and my hope.

July 2, 2018 1:07 AM

Atlas Shrugged said:

"what exactly will happen when the pendulum swings back their way, as it always does, and they come roaring back into power thirsty for vengeance?"

It will be swift and bloody - every single law that was struck down will be back before the SCOTUS in a heartbeat - in the first year they'll have wiped out half of the Bill of Rights alone, starting with the 2nd Amendment.

With any luck though, Ginsburg and Beyer will not live to see the end of the Trump presidency and he'll appoint two more young constitutionalists to replace them, meaning that we can put the left's vengence off for a quarter century or longer, meaning many of us wont be around to experience the horror that they'll inflict.

I hope and pray that some future generation will never be subjected to this horror but at age 46, I'm feeling tired and am simply happy that I'll escape it for now.